CULTIVATING AN ENTERPRISING MINDSET FOR GROWTH IN THE SPORTS AND ENTERTAINMENT INDUSTRY FORDHAM UNIVERSITY THE SCHOOL OF LAW

r atra P a rt Table of Contents

1. Speaker Biographies (view in document)

2. CLE Materials

Panel 4: Rainmaking: How to Create an Effective Business Development Strategy Rainmaking: How to Create an Effective Business Development Strategy CLE Materials. (View in document) Black Entertainment & Sports Lawyers Association Mid-Year Conference Speaker Bios

Mason Ashe to athlete, entertainer, and lawyer mental wellness. Her Founder & CEO brief bio is as follows: Ashe Sports & Entertainment Consulting, Inc. Founder & CEO of Ashe Sports & Entertainment Dr. Crowder is currently Managing Partner with Capitol Consulting, Inc., based in Bethesda, Maryland, has 29 Health Partners. In years of experience as a sports and entertainment that capacity, she has worked on projects that improve attorney, talent manager, industry advisor, and sports health outcomes for individuals and organizations. agent. He also teaches sports law as a member of the adjunct faculty at The Wharton School of the University She has led projects that have spanned from developing of Pennsylvania, and the Howard University School of strategies for the heroin overdose crisis in Anne Law. Arundel County to conducting violence research related to the National Football League ( NFL) that led Mr. Ashe has served as the lead contract negotiator, legal to a system wide clinical audit. She has also re-designing advisor, and brand strategist for professional athletes, clinical services to improve health outcomes in financial advisors, entertainers, on-air personalities, hospital and correctional settings. Dr. Crowder has health celebrity chefs, journalists, senior leadership at publicly care and policy expertise that has led to traded and privately owned businesses, film producers, successful implementation of change at a national, state investors in delivery mechanisms designed to and local level. commercialize talent, producers of TV and web-based reality shows, and a few pioneers of online social Lisa E. Davis networking and other New Media platforms changing the Partner way digital content is created, published, distributed, and Frankfurt Kurnit Klein & Selz P.C. consumed. Lisa E. Davis is a partner in our Entertainment Group Mr. Ashe earned a BA degree in Psychology from representing businesses and celebrities in the film, Hamilton College, and a Juris Doctor degree from the television, publishing, music, theatre, and sports State University of New York at Buffalo Law School. He industries. She was recently recognized as a "Leading also completed The Procter & Gamble Distributing Woman Lawyer in NYC" by Crain's New York Business Company - Executive Sales Management Training (2017), one of The National Law Journal's "Outstanding Program before attending law school. Women Lawyers" (2015), by Savoy magazine in their "Most Influential Black Lawyers of 2015", in The Best He has been listed twice by Sports Illustrated magazine Lawyers in America 2019 (Entertainment), and in on its “101 Most Influential Minorities in Sports” list, Variety's "Power of Women New York Impact Report" received the 2015 Sports Lawyer of the Year Award (2014). from the National Bar Association, and recently selected Ms. Davis advises on a full range of transactional matters for a 2016 Distinguished Alumni Award in Business - focusing on film (both feature and documentary), from the SUNY at Buffalo Law Alumni Association. television, publishing, live stage and branded entertainment. Ms. Davis represents directors, writers Dr. Valda Crowder and performers in film and television, as well as Managing Partner playwrights and bloggers. In her sports practice, she Capital Health Partners represents top athletes in their "off the field" activities, Currently heading the National Football League’s Player including endorsements and investments. Engagement Department as the Senior Vice President of Player Engagement. Responsible for overseeing the Ms. Davis is chair of the board of the U rbanworld Film Player Engagement staff, developing, implementing and Festival Foundation. Prior to joining Frankfurt Kurnit, managing educational programs and services for NFL she clerked for the Honorable Constance Baker Motley players which assists players in reaching their highest in the United States District Court for the Southern potential on and off the field by providing guidance, District of New York. Ms. Davis is a graduate of support and resources before, during and after their NFL Harvard University (BA, 1981) and New York experiences. University (JD, 1985), where she was a staff member of Art has also agreed to assist in providing a panelist at our the New York University Law Review and a Root-Tilden mid-year symposium on one of the topics we are scholar. She is admitted to practice in New York. currently researching for consideration related to player Her popular blog, Journal of the Plague Years, chronicles wellness on and off the field. the current political environment and offers tools for resistance (www.journaloftheplagueyears.com). Moreover, Dr. Valda Crowder has agreed to be a panelist and present her research and expertise on a topic currently under consideration for the symposium related Mavis Fowler-Williams activities, Mavis cherishes capturing these special Principal moments in photographs. Intellectual Property and Technology Law in the 21st Century Jay Grant Mavis Fowler-Williams is the principal in her private Executive Vice President & General Counsel practice, Intellectual Property and Technology Law in Univision Digital and News Univision the 21st Century. She handles a full array of Intellectual Communications, Inc. Property matters for clients, primarily in the As Executive Vice President and General Counsel of Entertainment industry. Univision Communications Inc.’s (UCI) Digital and News Divisions. He recently served as EVP and General Mavis began her career in Intellectual Property law as an Counsel of Fusion Media Group (FMG), the multi- associate for the patent boutique law firm of Cooper and platform, English language division of and home to the Dunham. While she was an in-house attorney for FUSION Cable Network, The Root, Gizmodo Media Johnson and Johnson, she became a registered patent Group, and The Onion. He oversees legal matters for attorney working on numerous patent cases. Eventually, Univision Digital, Univision News, and UCI’s interest in she joined the patent group in the New York Office of the El Rey and Fusion Cable Networks. He is an officer Anderson Kill, where she was a partner. of UCI and its more than two dozen broadcasting networks, cable networks, digital and mobile properties, Mavis realized that while she enjoyed patents, she didn’t and more than 120 television and radio stations. He want a career that limited her to just handling one aspect advises senior management on strategic partnerships, of Intellectual Property. She garnered the experience and new ventures, and content acquisition & distribution reputation as a transactional specialist, negotiating, deals. He has held a variety of senior leadership revising and reviewing thousands of copyright, positions in a career spanning Los Angeles to New York, trademark and technology license agreements and other managed corporate governance and transactions for UCI IP agreements, while at top corporations: Toys “R” Us, and its board of directors, served as group counsel for Nick at Nite and TV Land, CBS News, Al Jazeera UCI’s corporate development & strategic growth group, America and ALM Media. and represented all UCI divisions.

st Intellectual Property and Technology Law in the 21 Kimberley D. Harris Century has afforded Mavis the opportunity to combine Executive Vice President her experience in all areas of IP so she can better serve NBCUniversal her clients’ interests and needs. Private practice has also Kimberley D. Harris serves as Executive Vice President provided the opportunity for Mavis to pursue another of Comcast Corporation and General Counsel of passion of hers, teaching. She teaches Intellectual NBCUniversal. Property Drafting at Fordham Law School and IP Transactional Practice: Counseling, Negotiating, and In this role, Harris oversees all international government Drafting as well as the Negotiations Workshop at and regulatory affairs for Comcast, supporting the Columbia Law School. She hosted her Second Annual company’s businesses worldwide. Additionally as Intellectual Property Law in the 21st Century Panel of General Counsel of NBCUniversal, Harris provides legal Artists and Lawyers in April, 2019. advice to senior management team and oversees the legal function across all NBCUniversal divisions. She reports Mavis is the author of numerous legal books and articles, to Comcast Chairman and CEO Brian Roberts and i.e. on Copyright Law and Patent Law as well as articles NBCUniversal CEO Steve Burke. on copyright, trademark and entertainment law. She has also appeared on CNN, Court TV and radio and has been Harris joined NBCUniversal in 2013 from Davis Polk & featured in online publications. Wardwell, where she was a partner in the litigation department. Mavis Fowler-Williams is a graduate of the Columbia University School of Law, the Columbia University From 2010 to 2012, Harris served in the White House School of Engineering and Applied Science a/k/a The Fu Counsel’s Office, and became the principal Deputy Foundation School of Engineering and Applied Science Counsel and Deputy Assistant to the President in 2011. (popularly known as SEAS) and The Bronx High School At the White House, she advised senior Executive of Science. Branch officials on congressional investigations and executive privilege issues. In addition, Harris developed In her spare time, Mavis enjoys spending time with her and implemented the White House response to husband and two children biking, swimming, traveling, congressional investigations, and managed litigation kayaking, playing tennis, snowboarding, juggling and matters relating to the President. doing community service. While they engage in these From 2009 to 2010, she was Senior Counsel to the secret, trademark, copyright, and entertainment matters. Assistant Attorney General, U.S. Department of Justice, He has extensive transactional and litigation experience Criminal Division. representing clients, including but not limited to, the medical devices, pharmaceuticals, healthcare, computer Harris first joined Davis Polk & Wardwell as an software, chemicals, mechanical devices, industrial, associate in 1997 and was named a litigation partner in renewable energy, utility, mechanical engineering, and 2007. From 1996 to 1997, she served as a law clerk to automotive/transportation industries. Darrick has the Honorable Charles S. Haight, Jr., U.S. District Court, extensive experience in initial case evaluation and S.D. New York. assessment, development of case strategy and settlement options, all phases of discovery, Markman hearings, trial She serves on the boards of directors for Advocates for strategy development, trial, and post-trial proceedings Children of New York, an organization that provides and appeal. legal and advocacy services to at-risk students in the He also assists his clients with licensing, risk assessment New York City school system, and the Brennan Center and management, internal governance, compliance, and for Justice at New York University School of Law. due diligence investigations in connection with licensing Harris is also a member of the Advisory Board for the transactions, mergers, and acquisitions, namely those Yale Law School Center for the Study of Corporate Law. involving intellectual property portfolio acquisitions. As a result, he has developed a reputation for having an in- Harris graduated magna cum laude from Harvard depth understanding of a client’s business and University, and holds a law degree from Yale Law technology to successfully identify and manage global School. She lives in Westchester County, New York with assets, such as licensing and “freedom to practice” her husband and three sons. analyses of products, methods, and packaging. This includes conducting patent landscape investigations, and Keyes Hill-Edgar opinion work such as patentability, validity, non- Executive Vice President, Global Business Affairs and infringement, and freedom-to-operate opinions. General Counsel Viacom Media Networks His entertainment practice includes advising and Media Networks. Previously, Keyes was Executive Vice counseling clients on intellectual property, licensing and President, Business Affairs and General Counsel of the other contract rights, publishing rights, rights of VMN Music Group (MTV, VH1, CMT and Logo), and, publicity, and branding issues. prior to that, he was Senior Vice-President, Deputy General Counsel and Assistant Secretary of Viacom Inc., As a commercial litigator, Darrick has advised clients on responsible for numerous areas including mergers and and litigated cases involving complex commercial acquisitions. Prior to joining Viacom in 2000, Keyes matters, including cyber security, product liability, was associated with the law firm of Shearman & premises liability, and breach of commercial agreements. Sterling, working in their mergers and acquisitions, specialized finance and arbitration groups, in both their Darrick is admitted to practice before the United States Paris and New York offices. He graduated from Patent and Trademark Office. He serves on the Board of Columbia School of Law in 1994 as a Harlan Fiske Directors of the Institute for Science & Education Stone Scholar, magna cum laude from Harvard College Technology, Free Spirit Media, and the Black in 1991, and from St. George’s School in 1987. Prior to Entertainment and Sports Lawyers Association. He is that, he attended school in Aix-en-Provence, also a member of the Intellectual Property Advisory France. Keyes is on the Board of Trustees of St. Hilda’s Board at the Maurer School of Law at Indiana and St. Hugh’s School, a member of a number of University-Bloomington. professional organizations, involved with several charitable organizations and was a fellow in The Damon Jones Partnership for New York City’s David Rockefeller Senior Vice President & General Counsel Fellowship program. He lives on the Upper West Side of Washington Nationals Basketball Club New York City with his wife and three children. Damon Jones is the Senior Vice President & General Counsel, Baseball & Business Operations of the Washington Nationals Baseball Club. Jones oversees the Darrick Hooker Legal Department, is a member of the Baseball Operations Partner Department, and has oversight of the Human Resources Akerman, LLC- Intellecutal Property Department. Jones’ Baseball Operations work includes Darrick Hooker is a counselor and a litigator who player contracts, salary arbitration, grievances, Basic routinely counsels and represents clients with a variety of Agreement and Major League Rules issues, and overall intellectual property issues, including patent litigation strategy. Jones works closely with every other department and counseling relating to litigation, as well as trade on deals, legal and business strategy, special projects, O’Connor in the firm’s Commercial Litigation Unit in disputes, and other matters. which he was involved in all aspects of civil and criminal litigation including appellate practice. Civil litigation Jones is an alumnus of Harvard Law School, The Wharton practice involved representation of individual and School, and the University of California, Santa Barbara, institutional clients in insurance coverage, subrogation, where he played Division I Baseball. He previously product liability, Domestic Relations and commercial practiced at the law firm of Williams & Connolly LLP, litigation matters. Criminal practice focused served as an inaugural law clerk to the Honorable Roger predominantly on Federal Trial and Appellate matters. L. Gregory of the United States Court of Appeals for the Fourth Circuit, was a California State Senate Fellow, and Mr. Joseph received his Bachelor of Arts degree from was Adjunct Professor of “Sports and the Law” at Hamilton College and his Juris Doctorate from Temple Georgetown University Law Center. University School of Law. Jones received a J.D. from Harvard Law School and B.A. He has served as an adjunct professor of law at the from the University of California, Santa Barbara. He is a Temple University School of Law and is currently an frequent speaker and lecturer on the sports business. adjunct professor of law at Drexel University School of Law. Arnold Joseph Owner Anita LaRue Joseph & Associates Assistant U.S. Attorney Mr. Joseph is the Owner of Joseph & Associates in U.S. Attorney's Office for the District of Columbia which he is involved in all aspects of civil and criminal Anita LaRue, is an attorney in the U.S. Attorney’s Office litigation including appellate practice as well as quite an of the District of Columbia. As a senior prosecutor, extensive transactional practice. His civil litigation Anita has prosecuted almost every type of local and practice involves representation of individual and federal crime in District of Columbia. She has also had institutional clients in personal injury, subrogation, the opportunity to serve as a community prosecutor in product liability, domestic relations and commercial many parts of the District of Columbia. As such, she litigation matters in federal and state courts throughout works closely with a wide variety of community groups the country. His criminal practice focuses on large-scale including young adults, parents, neighborhood watch narcotics, tax and fraud matters in federal courts; groups, law enforcement groups, halfway house narcotics and homicide matters in state courts and residents, re-entrants, college students, seniors, domestic appellate matters in both federal and state courts. He has violence victims, and elementary, middle and high tried well over 500 civil and criminal matters to verdict. school students. Among her many duties, Anita has served as the Mr. Joseph’s transactional practice involves the assigned prosecutor in Mental Health Community Court negotiation and drafting of complex contracts in a variety in the Superior Court of the District of Columbia. of areas. Mr. Joseph has served as general counsel to Anita has also served as the Acting General Counsel in Golden Boy Promotions, LLC, a Los Angeles, California the D.C. Department of Corrections where she worked to based professional boxing promoter owned by former improve the educational instruction in the District of professional boxer Oscar De la Hoya. He negotiated and Columbia Jail and the Correctional Treatment Facility. drafted distribution and content agreements with television networks (HBO, Showtime, ESPN and Prior to the U.S. Attorney’s Office, Anita served as the Telefutura, etc.), venues (Las Vegas MGM properties, Deputy Director of the Office of Intergovernmental New York Madison Square Garden and Barclays Center, Affairs, in the Department of Justice. In that role she etc.), boxers, boxing promoters and sponsors for boxing worked with advocacy groups in the areas of law events throughout the United States, Mexico and Europe. enforcement, civil rights, environmental, immigration, He also litigated matters on behalf of Golden Boy in healthcare, welfare fraud, violence against women, and federal and state courts and before State Athletic victim’s rights. She participated in a working group with Commissions and Boxing Sanctioning bodies. members of the Civil Rights Division and others to research state and federal law to determine the effects of Mr. Joseph currently serves as counsel to Haymon hate crime on prosecutions. She served on the Church Boxing which is a company devoted to the provision of Arson Task Force and played a key role in a major advisory and consulting services to some of the world’s initiative to identify and address immigration fraud, most preeminent professional boxers. The services which which included chairing meetings at the New Jersey U.S. Mr. Joseph performs for Haymon boxing include Attorney’s Office attended by federal and state law preparation, review and revisions of contracts similar to enforcement representatives and immigration advocacy those referenced with respect to Golden Boy. groups. Prior to forming Joseph & Associates, Mr. Joseph was a member of the Philadelphia based law firm Cozen Outside of her legal work, Anita serves on the Boards of Directors of Special Olympics D.C. and Joy of Motion litigation and intellectual property with a focus on the Dance Center. sports, media and entertainment industry. His extensive She received her Bachelor of Arts from the University of experience includes advising and counseling professional Pennsylvania and her Juris Doctor from the UCLA athletes in the NBA, NFL and MLB, representing at least School of Law. She lives in Washington, D.C. with her one number one overall draft pick in all three major husband, Arthur and her daughter, Dylan. sports. In his capacity as General Counsel to professional athletes and agencies, he has advised on matters related Chereece Lawson Martin to, amongst other things, Player- Agent disputes before Vice President of Business and Legal Affairs the NBPA and MLBPA, NCAA Regulatory Compliance, Viacom Media Networks and BET Networks endorsement and sponsorship agreements, professional Chereece Lawson Martin currently serves as Vice boxing promoter and licensing agreements and Title IX President of Business and Legal Affairs for Viacom Sexual Assault Matters. Anthony has also been called Media Networks and BET Networks where her upon to represent professional athletes in high profile responsibilities include structuring and negotiating a domestic relations matters. His litigation practice is wide variety of development and production agreements, national in scope and has resulted in him handling including without limitation, agreements with third-party matters in California, Florida, Georgia, Illinois, New production companies, on-camera talent, directors, Jersey, New York, South Carolina and Texas. Anthony is producers, co-production deals, sponsorship agreements Co-chair of the firm's Sports & Entertainment Practice. and licensing agreements for the original programming, music programming, specials, news and digital teams. Anthony has represented a wide variety of enterprises, While at BET Networks, Chereece has served as one of including studios, television and cable networks, in the lead attorneys for some of BET’s tent-pole specials, highly sensitive litigation and business transactions. He music and news programming and reality programming, has also represented some of Hollywood's brightest stars including BET Awards Pre-Show and Post-Show in negotiating hundreds of motion picture and television specials, “106 & Park”, “Rap City,” “50 Central,” and actor, writer, producer and director agreements, stage BET’s Music Matters Campaign. production agreements, and broadcast licensing Before officially joining BET, Chereece was an arrangements. Associate at the entertainment law firm, The Roberts Prior to joining Mintz, Anthony served as the founding Law Group, PLLC, where she provided counsel to its and managing partner in the Atlanta office of a clients on a variety of television production and music- prominent national law firm. He was the chair of the related matters. firm’s national sports, media & entertainment law practice and a member of the commercial litigation and Chereece received Bachelor of Arts degrees in intellectual property practice groups. Communications and Sociology from the University of Pennsylvania and her Juris Doctor from Fordham Clarence Nesbitt University School of Law. She serves on the Television General Counsel and Radio Committee of the New York State Bar National Basketball Players Association Association and the Corporate Law and the Minorities in Nesbitt now serves as the General Counsel for the the Profession Committees of the New York City Bar National Basketball Players Association (NBPA). In his Association. She also currently serves as Co-Chair of role, he oversees a team of attorneys responsible for all BESLA’s Film and TV Division. aspects of the NBPA’s legal affairs. Previously, Nesbitt was the General Counsel and an inaugural member of the Anthony Mulrain Board of Directors for THINK450. THINK450 is a Member/Co-Chair Sports Practice wholly-owned subsidiary of the NBPA tasked with Mintz, Levin, Cohn, Ferri, Glovski & Popeo P.C. generating licensing and sponsorship revenues using the Anthony deftly handles a broad array of litigation group license of the image rights of NBPA members. matters for a myriad of sports, entertainment, and media Nesbitt joined THINK450 from NIKE, Inc., where he last clients. He represents professional athletes and served as the Director of Global Brand Business Affairs. entertainers in courts around the country and handles In that role, he led the global team responsible for securing sensitive matters for entertainment companies. Another key approvals, licensing and safeguarding NIKE’s Global key focus of his practice includes representing sports Brand Marketing function against potential issues related agencies and professional athletes in fee dispute to advertising and marketing. He worked in other arbitrations. And he negotiates endorsement deals for capacities at NIKE in his 9.5-year career, most notably athletes and television and motion picture contracts for serving for four years as Sports Marketing Counsel at actors, writers, producers and directors and broadcast NIKE’s European headquarters in Hilversum, The licensing arrangements for Television Producers. Netherlands. In that role, he represented NIKE in its negotiations for sponsorship contracts with top-tier Anthony’s practice primarily focuses on commercial athletes, teams and federations across Europe, Middle East and Africa. Before Clarence joined NIKE, Inc., he from Princeton University, an M.A. with a concentration was an associate in Mergers & Acquisitions at elite in Sport Psychology from the University of North Manhattan law firm, Shearman & Sterling LLP. Carolina-Chapel Hill, and a Ph.D. from Temple As an undergraduate, Clarence attended Florida A&M University. University (FAMU), where he studied Business Administration, graduating magna cum laude. He Khadijah Sharif-Drinkard remained at FAMU to complete his Master’s Degree in Senior Vice President, Business and Legal Affairs Business Administration. In his time at FAMU, Viacom Media Networks Clarence worked as an intern at four different Fortune Khadijah Sharif-Drinkard serves as Senior Vice 500 companies, Cummins Engine Company, Mead President, Business and Legal Affairs, Viacom Media Corporation (now known as MeadWestvaco Networks, where she oversees unscripted programming, Corporation), Hewlett-Packard Company (now known as music programming, tent poles, specials and news across HP Inc.), and Ford Motor Company. He continued his BET Networks. She is a strong business partner with post-graduate education by matriculating to Georgetown broad expertise and over 20 years of practicing law in the University Law Center in Washington, D.C., where he media and entertainment field. Khadijah structures and earned his Juris Doctor degree. negotiates a wide variety of transactions in connection with the development, production, acquisition and Dr. Nyaka Niilampti distribution of content across platforms. Her experience Vice President as a skilled business executive and deal maker was National Football League paramount in her closing deals for a number of high Nyaka NiiLampti, Ph.D. is currently the Vice President profile projects, including, the Bobby Brown Story, the of Wellness and Clinical Services for the National New Edition mini-series (the highest rated show ever on Football League. In her role, she is responsible for the BET), and in bringing the Black Girls Rock! franchise to Total Wellness and Mental Health platforms and plays a BET. Prior to working at BET Networks, Khadijah strategic role in the Player Engagement department’s served as Vice President, Senior Counsel at Nickelodeon mission to have a lifelong positive impact on individuals where she helped to launch such hits as Dora the inside and outside of the NFL family. Explorer, Diego and The Backyardigans. Khadijah serves as President of the Board of Directors Nyaka has most recently served as the Director of Player for the Black Entertainment & Sports Lawyers Wellness for the NFLPA, where she Association (BESLA) and as Vice President of the Board focused on providing resources and educating players on for Columbia College Women (CCW). She received the all aspects of wellness, including mental health and the Luminary Award for her business acumen and her NFL Program on Substances of Abuse. In addition, she commitment to diversity and inclusion from the National served as an advocate for players by ensuring their rights Association of Multi-Ethnicity in Communications are protected under the NFL Drug Policies. (NAMIC), the inaugural Corporate Counsel of the Year Award from the Muslim Bar Association of New York Nyaka is a licensed psychologist with over fifteen years (MuBANY) in 2018 and the Ruth Whitehead Whaley of clinical experience, and has worked extensively with Award from Fordham Law School’s Black Law Students organizations, sports teams, individuals and families in a Association (BLSA) for being an outstanding alumna in variety of settings, including community mental health, 2019. Khadijah earned her Bachelor of Arts degree from college counseling centers, and in private Columbia University and her Juris Doctor from Fordham practice. Before joining the NFLPA, Nyaka was a University School of Law. She lives in New Jersey with tenure-track Assistant Professor of Psychology at Queens her husband and two daughters. University of Charlotte, where she taught undergraduate courses in multiple areas and served as the Faculty Olivier Sylvain Athletic Representative to the NCAA. Her research Director, The McGannon Center for focused on multiculturalism and mental health, Communications Research; Professor of Law particularly as those concepts relate to issues of Fordham Law School resiliency and success. Olivier Sylvain is a Professor of Law at Fordham University School of Law. His academic interests are Dr. NiiLampti also spent several years in private chiefly in information and communications law and practice where she specialized in comprehensive services policy. He has written a variety of law review articles, focused on performance related concerns and athlete symposium pieces, essays, policy papers, news articles, well-being, also serving as a Treating Clinician for the op-eds, and blog posts on current controversies in NFL Program for Substances of Abuse and as an communications policy, online intermediary liability, approved clinician for the NBA/NBPA Player privacy, and copyright. He is part of a team of legal Assistance/Anti-Drug Program. A former track and field scholars, research engineers, and social entrepreneurs to college student-athlete, Nyaka has a bachelor’s degree whom The National Science Foundation in fall 2017 awarded a three-year one-million-dollar grant to Department of Justice policy on sensitive legal issues prototype an "edge-cloud" network that is to be owned and helping to manage the department’s Task Force on and operated as a “commons resource” for Harlem Intellectual Property. She also spent several years in residents. private practice at the Recording Industry Association of America and at the law firm Williams & Connolly, LLP. At Fordham, Olivier teaches Legislation & Regulation, She began her legal career as a trial attorney for the U.S. Administrative Law, Information Law, and information Department of Justice’s Civil Division through its law related courses. He is the Director of the McGannon Honors Program and also served as a law clerk to the Center for Communications Research. He is also Hon. Nathaniel R. Jones of the U.S. Court of Appeals for affiliated with the Center for Law and Information the Sixth Circuit. Policy and the Center on Race, Law, and Justice. Before Temple earned her JD from the Columbia University entering academia, Olivier was a Karpatkin Fellow in the Law School, where she was a senior editor of the National Legal Office of the American Civil Liberties Columbia Law Review and Harlan Fiske Stone Scholar. Union in New York City and a litigation associate at She earned her BA in English from the University of Jenner & Block, LLC, in Washington, D.C. He is on the Michigan. board of directors for the New York affiliate of the American Civil Liberties Union and teaches a class on Joseph K. West modern American literature for local incarcerated men. Partner and Chief Diversity and Inclusion Officer Olivier received his J.D. from Georgetown University Duane Morris LLP Law Center. Joseph K. West is a partner in Duane Morris’ Washington D.C. office, a member of the firm’s Partners Karyn Temple Board and the firm’s Chief Diversity and Inclusion Acting Register of Copyrights and Director Officer. As a trial lawyer, Mr. West represents clients U.S. Copyright Office from start-ups to the Fortune 500 in complex commercial On October 21, 2016, Librarian of Congress Dr. Carla litigation, ranging from class actions and insurance Hayden named Karyn A. Temple Acting Register of litigation to products liability, and labor and Copyrights. employment. He has tried over 150 matters to verdict, and managed the largest class action in U.S. history. Temple had served as Associate Register of Copyrights A nationally recognized authority on diversity and and director of policy and international affairs for the inclusion, he advises companies, their boards and CEOs United States Copyright Office since January 30, 2013. on their corporate strategies in this area. Prior to Duane Prior to that, she served as senior counsel in the Office of Morris, he served as President/CEO of Minority Policy and International Affairs. As Associate Register, Corporate Counsel Association. Previously, he was she assisted the Register of Copyrights with critical Associate General Counsel at Walmart Stores Inc., where policy functions of the Copyright Office, including he managed 600 law firms worldwide and a $300 million domestic and international policy analyses, legislative budget; Associate General Counsel at Entergy support, and trade negotiations. She directed the Office Corporation; and prior, a partner in law firms in of Policy and International Affairs, which provides Louisiana. regular support to Congress and its committees on statutory amendments and construction, and also Mr. West’s J.D. is from Tulane Law School, where he represents the Copyright Office at meetings of served as Adjunct Professor of Trial Advocacy, and his government officials concerned with the international B.A. from Southern University. He currently lectures on aspects of copyright protection and enforcement. corporate diversity at the George Mason Scalia School of Prior to joining the Copyright Office in 2011, Temple Law, where he developed the first-of-its-kind curriculum served as senior counsel to the deputy attorney general of on corporate diversity and inclusion. the United States, assisting with the formulation of U.S.

Rainmaking: How to Create an Effective Business Development Strategy

Oftentimes, attorneys aren’t focused on efforts to attract new clients in addition to maintaining current ones. Talk is cheap. Buy-in and action are key. Thinking and planning are the easy parts for lawyers; implementation is a different beast. The big question to ask is: What actions should be taken? In this workshop, hear from industry rainmakers and leaders who will help you to build an effective business development strategy for use across the board- whether you are law firm management, a partner or an associate. During the presentation, participants will discuss Model Rules of Professional Conduct (a) Rule 4- Transactions with Persons Other than Clients and (b) several sections of Rule 7- Information About Legal Services. Furthermore, this workshop will review scholarly articles and proven business methods for persuasive selling.

Though not limited to the following, the workshop will cover: • Increased communication with current clients, • Getting involved in substantive organizations, • Participating in speaking engagements, • Writing substantive and technical articles of interest, • Building an online presence via social media, and • Understanding the return on investment from marketing expenditures.

Participants will walk away from this workshop with business development and networking techniques as well as strategies to successfully build and maintain a book of business.

PANELISTS 1. Mason Ashe, Esq. Founder & CEO, Ashe Sports & Entertainment Consulting, Inc. (Moderator) 2. Lisa E. Davis, Esq. Partner, Entertainment Group, Frankfurt Kurnit Klein & Selz P.C. 3. Jay Grant, Esq., Executive Vice President & General Counsel, Univision Digital and News, Univision Communications Inc. 4. Anthony Mulrain, Esq., Member/Co-Chair Sports Practice, Mintz, Levin, Cohn, Ferri, Glovski & Popeo P.C.

CLE MATERIALS A. Model Rules of Professional Conduct- Rule 4: Transactions with Persons Other Than Clients B. Model Rules of Professional Conduct- Rule 7.1: Communications Concerning a Lawyer’s Services C. Model Rules of Professional Conduct- Rule 7.2: Communications Concerning a Lawyer’s Services: Specific Rules D. Model Rules of Professional Conduct- Rule 7.3: Solicitation of Clients E. 5 Steps to Persuasive Selling. Available here: http://www.linearsc.com/about/blog/item/25-persuasive-selling-format F. Taft, Mark L., “Rethinking Lawyer Advertising Rules.” The Professional Lawyer Journal; ABA Center for Professional Responsibility, Vol. 23, No. 3 (2016) G. Masich, Matt, “Lawyer Bad Behavior is Case for Courts.” Law Week Colorado, Vol. 09, No. 22 (2011) H. “Build It! The Law Firm Associate’s Guide to Business Development.” Attorney at Work, available here: https://www.attorneyatwork.com/wp-content/uploads/2016/02/Build-It- Law-Firm-Associates-Guide-to-Business-Development-Attorney-at-Work.pdf

EXCERPTS FROM MODEL RULES OF PROFESSIONAL CONDUCT

Rule 4.1: Truthfulness in Statements to Others

Transactions With Persons Other Than Clients

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Courtesy of www.americanbar.org Rule 4.2: Communication with Person Represented by Counsel

Transactions With Persons Other Than Clients

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Courtesy of www.americanbar.org Rule 4.3: Dealing with Unrepresented Person

Transactions With Persons Other Than Clients

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. Courtesy of www.americanbar.org Rule 4.4: Respect for Rights of Third Persons

Transactions With Persons Other Than Clients

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

(b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.

Courtesy of www.americanbar.org Rule 7.1: Communications Concerning a Lawyer's Services

Information About Legal Services

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Courtesy of www.americanbar.org Rule 7.2: Communications Concerning a Lawyer's Services: Specific Rules

Information About Legal Services

(a) A lawyer may communicate information regarding the lawyer’s services through any media.

(b) A lawyer shall not compensate, give or promise anything of value to a person for recommending the lawyer’s services except that a lawyer may:

(1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service;

(3) pay for a law practice in accordance with Rule 1.17;

(4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if:

(i) the reciprocal referral agreement is not exclusive; and

(ii) the client is informed of the existence and nature of the agreement; and

(5) give nominal gifts as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services.

(c) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:

(1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate authority of the state or the District of Columbia or a U.S. Territory or that has been accredited by the American Bar Association; and

(2) the name of the certifying organization is clearly identified in the communication.

(d) Any communication made under this Rule must include the name and contact information of at least one lawyer or law firm responsible for its content.

Courtesy of www.americanbar.org Rule 7.3 Solicitation of Clients

Information About Legal Services

(a) “Solicitation” or “solicit” denotes a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.

(b) A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain, unless the contact is with a:

(1) lawyer; (2) person who has a family, close personal, or prior business or professional relationship with the lawyer or law firm; or

(3) person who routinely uses for business purposes the type of legal services offered by the lawyer.

(c) A lawyer shall not solicit professional employment even when not otherwise prohibited by paragraph (b), if:

(1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or

(2) the solicitation involves coercion, duress or harassment.

(d) This Rule does not prohibit communications authorized by law or ordered by a court or other tribunal.

(e) Notwithstanding the prohibitions in this Rule, a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses live person-to-person contact to enroll members or sell subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.

Courtesy of www.americanbar.org

Persuasive Selling Format

Abstract. Top Fortune 500 Companies (e.g., Procter & Gamble salesforce) and strategic communications agencies use this selling format to close the deal on various types of transactions. This format works from any situation requiring the user to convince someone of his/her proposal. It can be used in emails, memoranda, presentations and in person-to-person communication.

The first thing we need is a system to logically organize our thoughts. Here are the 5 steps in order.

1. The Situation. What conditions (problems) have arisen? Only include information that everyone agrees upon.

2. The Idea. What are you proposing? This is typically one sentence.

3. How it Works. The details. Just an overview. Try to be brief.

4. Key Benefits. This is the “Why?” These should reinforce the overall strategy and confirm a path to profitability.

5. Next Steps. Who has to do what and by when for this to happen?

The five steps in more detail:

1. Summarize the Situation:

First, start the conversation by sharing information that gets the listener interested and that makes them receptive to what you have to say. It is best if you talk about things your customer said were important to them the last time you spoke. You can also share key facts, information or industry trends that help set up the discussion.

2. State the Idea:

Now that you have their attention, don’t beat around the bush, get right to the point and tell them a brief statement of the idea. Just provide a headline of your recommendation stated in a way that makes it compelling.

3. Explain How It Works:

Once you’ve clearly stated the proposition, now is the time to provide details of the recommendation. Typically this includes more information about the product, pricing, and execution of the proposal such as timing and logistics. 4. Reinforce Key Benefits:

Now that they understand the detail, time to hit home the key reasons they should agree to move forward. It is easy to try ‘win over’ the customer with a long list of why they should agree. Considering we all have a limited attention span it is best to focus on a few of the more important key benefits.

5. Suggest Easy Next Steps:

Every sales process needs a "Close". Practice your pitch by naturally “suggesting easy next steps”. Make it easy for them to say “yes”. Remove barriers and show them a path to agreement that fits easily into their specific situation.

Courtesy of Linear SC, a strategic communications Agency. Available here: http://www.linearsc.com/about/blog/item/25-persuasive-selling-format

ABA Center for Professional Responsibility The Professional Lawyer Volume 23, Number 3

Rethinking Lawyer Advertising Rules

By Mark L. Tuft

Mark L. Tuft is a partner with Cooper, White & Cooper LLP in San Francisco, CA and chair of the Regulation of Lawyer Advertising Committee of the Association of Professional Responsibility Lawyers.

Ever since a total ban on lawyer advertising was held to be unconstitutional,1 the legal profession has encountered problems in regulating lawyer advertising. Regulators attempt to prohibit legal advertising that is considered false or misleading with an expanding array of complex and inconsistent rules. This mix of unconformable regulations has failed to keep pace with changes in technology that are enabling innovative electronic dissemination of information about lawyers and legal services. Many states have regulations that prohibit particular statements by lawyers as either inherently misleading or likely to mislead the public. Others have regulations requiring advertisements to include particular information, ostensibly to protect consumers from being misled. Most of these rules relate back to outdated methods of communication and have become increasingly unworkable in the age of electronic media advertising.

The most significant change in the world of advertising has been the advent of the Internet. The legal profession has been discussing the importance of the Internet in attracting clients and disseminating useful information about the law and legal services for more than a decade.2 Internet-based lawyer advertising is now accepted practice, and the public relies on the Internet as a leading source of infor- mation about lawyers and the availability of legal services.3 Online and other electronic forms of adver- tising are dominant in an age when market forces strongly favor e-commerce.

The recent explosion of social media, professional networking services, and mobile technology has fur- ther rendered the regulation of lawyer advertising by state regulatory agencies ineffective.4 There is a growing disconnect between the way lawyers are expected to communicate with prospective clients in accordance with existing rules and the way the public communicates with everyone else and seeks infor- mation about legal services.5 Overly restrictive, dated, and unrealistic regulations have proven to be a mismatch for emerging communication technologies and sophisticated methods of marketing legal ser- vices – like trying to the follow the rules of the road from before the time of automobiles.

The increasing use of the Internet and mobile technology has resulted in borderless forms of Internet- based advertising. Yet advertising rules vary significantly from state to state on substantive and techni- cal issues. There is a tacit understanding that this regulatory patchwork is increasingly irrelevant and ineffective: many regulations are not uniformly enforced, and in some cases regulations are not enforced at all. The current complex array of detailed regulations fails to achieve stated objectives while often confounding lawyers trying to decipher which state’s rules control Internet-based advertising.6

Published in The Professional Lawyer, Volume 23, Number 3, ©2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 1 ABA Center for Professional Responsibility The Professional Lawyer Volume 23, Number 3

This confused state of affairs has an obvious chilling effect on lawyers utilizing advances in technology to communicate accurate information to consumers who want more, not less, information about legal services. It also challenges the legal profession’s capacity to maintain enforceable rules that are consti- tutionally sustainable and that assure, to a reasonable degree, that consumers are receiving accurate and non-misleading information about lawyers and legal services.7

Consider the following example: an attorney has a personal profile page on a social media website and regularly posts comments about her personal life and professional practice on that profile page. The attorney has 500 approved contacts who are a mix of personal and professional acquaintances, includ- ing persons the attorney does not know. The attorney posts the following remark on her profile page: “Another great victory in court today. My client is delighted. Who wants to be next?” According to a recent State Bar of California ethics opinion, the words, “Who wants to be next?” is a communication concerning the availability for professional employment, and thus the entire message is subject to the rules and standards regulating lawyer advertising.8 The opinion concludes that the posting violates Cal- ifornia’s prohibition on client testimonials (“My client is delighted”), because it fails to include a dis- claimer. It violates California’s rule on guarantees, warranties, and predictions because it includes the phrase “victory.” It also violates the requirement that the posting include the words “advertisement,” “newsletter” or words to that effect. Because of her choice of words, the lawyer was also obligated under the California rules to archive her post for two years.

Another recent ethics opinion advises that a lawyer may respond to an individual who posts about a specific client problem on Twitter or Reddit via the same medium. However, if the lawyer describes her capabilities or experience rather than merely discussing the individual’s legal problem without mention- ing her services, the lawyer’s response is subject to the advertising rules requiring, among other things, that the response be labeled as “advertising” and include the law office address and phone number and that the response be retained for one year.9 Other ethics opinions caution against lawyers listing their abilities and areas of practice in social networking platforms that have sections entitled “specialties” or “skills and expertise,” since doing so may result in the lawyer engaging in potentially misleading adver- tising under their state’s advertising rules.10 These overly technical opinions impose impractical obliga- tions on lawyers and unreasonably deter lawyers from using Internet-based client development tools that are not fraudulent or deceptive.

It is time to reexamine the lawyer advertising regulatory model by focusing on clarity and relevance through simplified rules that prohibit false and misleading advertising while leaving behind ineffective, extraneous, and often unconstitutional rules that in effect legislate good taste.

Addressing the Inutility and Inconsistencies of Current Advertising Regulations A committee of the Association of Professional Responsibility Lawyers (“APRL”) studied various state approaches to regulating lawyer advertising and gathered empirical data regarding the enforcement of advertising rules by state regulators. The committee’s report, issued in June 2015, identifies legal and practical consequences of over-regulation and low level enforcement of complex and inconsistent regu- lations. The report proposes a practical solution for bringing rationality and uniformity to the regulation of lawyer advertising and disciplinary enforcement while enabling consumers to receive accurate and

Published in The Professional Lawyer, Volume 23, Number 3, ©2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 2 ABA Center for Professional Responsibility The Professional Lawyer Volume 23, Number 3

non-deceptive information.11 The committee received valuable assistance from the ABA Center for Pro- fessional Responsibility and the National Organization of Bar Counsel (“NOBC”). The committee obtained, with NOBC’s assistance, empirical data derived from a survey sent to bar regulators regarding the enforcement of current advertising rules by state disciplinary authorities. The committee received survey responses from 34 of 51 jurisdictions. The survey responses confirm that complaints about lawyer advertising are rare.12 The survey found that people who complain about lawyer advertising are predominantly other lawyers and not consumers.13 According to the survey results, a majority of com- plaints about lawyer advertising are handled informally, even when there is a provable advertising rule violation.14 Few states engage in active monitoring of lawyer advertisements.15 Many cases in which dis- cipline has been imposed involve conduct that would constitute a violation of ABA Model Rule 8.4(c), independent of the rule or rules specific to advertising practices. 16

The APRL committee considered other surveys and materials regarding the attitude of bar regulators and consumers toward lawyer advertising enforcement that reported similar findings.17 The committee also considered the constitutional standards for regulating commercial speech, the proliferation of legal ethics opinions on lawyer advertising, and the paucity of disciplinary decisions enforcing lawyer adver- tising rules. Several notable case decisions in the last decade have held that lawyer advertising regula- tions in various states failed the Central Hudson test, which bars regulation on the grounds of taste as violative of freedom of expression. 18 Anti-competitive concerns with current lawyer advertising regula- tion were also considered by the APRL committee. The Federal Trade Commission (“FTC”), for exam- ple, has on occasion reminded various state regulatory agencies that overly broad advertising restrictions not only reduce competition and violate federal antitrust laws, but also restrict truthful information about legal services.19 Many lawyer regulatory agencies are monitoring the recent US Supreme Court decision in North Carolina State Board of Dental Examiners v. F.T.C.20 , in which the Supreme Court found that the Board of Dental Examiners’ exclusion of non-dentists from providing teeth whitening services was anti-competitive and an unfair method of competition in violation of the Federal Trade Commission Act. The concern is that this precedent could arguably be applied to lawyer disciplinary authorities, especially if it appears that the lawyers making decisions on what is permissible lawyer advertising are competitors and there are no clearly articulated objective criteria for determining if the advertising of the competitors violates the rules of professional conduct.

APRL’s report identifies deficiencies in current regulations that demonstrate the need for a realignment of the balance between the core values of professional responsibility and effective lawyer advertising. State rules on lawyer advertising are largely based on print and other forms of traditional advertising. Lawyers and law firms face difficult challenges in making sure that their online advertising conforms to standards that for the most part were formulated in the last century. The traditional advice that lawyers should comply with the most restrictive rule when faced with competing state regulations (the “least common denominator approach),”21 is no longer practical or necessarily comprehensible. The require- ments of each state often vary greatly, such that compliance with each jurisdiction’s rules is not always feasible.22 The ABA Model Rules of Professional Conduct have not been uniformly adopted and the ABA Commission on Ethics 20/20’s recent effort to modernize the advertising rules has been enacted by only a few states.23 Choice of law problems confronting lawyers and state regulators often outweigh public protection and have had a negative effect on the dissemination of useful information. For example, each state has varying labeling, disclosure, and record-keeping requirements.24 The lack of predictability

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with respect to how a particular bar regulator will view a given advertisement is an increasingly difficult problem for lawyers and law firms. This problem is compounded by inconsistent enforcement and overly technical advisory opinions on the application of existing rules to new technologies.

APRL found that there is a lack of empirical research demonstrating a correlation between the prolifera- tion of regulation and underlying consumer harm justifying that regulation. Yet the trend persists: the proliferation of lawyer advertising in an electronic age has been met by greater regulation, however inef- fective. Significant dissimilarity exists among state rules that seek to regulate potentially misleading communications or specific content such as past results, the listing of lawyer specialties, inclusion of endorsements and testimonials, and the use of symbols, dramatizations, rankings, slogans, and even background music (sometimes referred to as “attention-getting techniques”). The regulation writers’ justifications for many of these variances include concerns about the negative image of lawyers and the lack of respect for the judicial system.25 Indeed, the traditional reason for prohibiting lawyer advertis- ing was that it was “unprofessional.”26 Yet in Central Hudson, the Supreme Court could not have been more clear: regulation of taste, dignity, and professionalism is outside the permissible scope of regula- tion.27 Nevertheless, many state regulations continue to prohibit unseemly content in the name of mis- leading or potentially misleading advertisements.28

Common Sense Approach to Regulating Lawyer Advertising Given the survey results and other information received from regulators, ethics opinions, and case law, APRL concluded that the practical and constitutional problems with current state regulation of lawyer advertising far exceed any actual benefits, in terms of protection of the public and maintaining the the integrity of the legal profession. Lawyers should not be subject to discipline for “potentially misleading” advertisements or advertisements that are considered distasteful or unprofessional. Nor should lawyers be subject to discipline for violation of technical requirements regarding font size, placement of a dis- claimer, or advertising record retention. Regulators should use non-disciplinary measures to address lawyer advertising and marketing that does not violate Model Rule 8.4 principles.

APRL has proposed a two-prong approach to regulating lawyer advertising: (i) having a single rule pat- terned on Model Rule 8.4(c) that prohibits false and deceptive advertising, and (ii) standardizing non- disciplinary responses to common lawyer advertising complaints. APRL proposes that the prohibitions in Model Rule 7.1 be retained and that Rules 7.2, 7.4, and 7.5 be replaced with comments to Rule 7.1 that reflect the principles contained in those rules, that will provide guidance on the “false and misleading” standard in Rule 7.1. APRL has deferred considering issues relating to the regulation of direct solicita- tion of clients and communications transmitted in a manner that involves intrusion, coercion, duress, or harassment (Model Rule 7.3). Consideration regarding the effect of certain forms of lawyer advertising and marketing on the regulation of lawyer referral services has also been deferred.29

Adopting a disciplinary standard of prohibiting “false and misleading” lawyer communications is con- sistent with Model Rule 8.4(c), which prohibits lawyers from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation.” A straightforward “false and misleading” standard for lawyer com-

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munications about legal services satisfies the proper constitutional objectives of regulating lawyer advertising and balances the important interests of access to justice and protection of the public and clients, and promotes uniformity in the regulation of lawyer conduct.

APRL’s second proposal deals with enforcement. Experience has shown that most reported breaches of the advertising rules are technical or minor in nature and do not involve actual deception or consumer harm. Routine complaints about lawyer advertising can better be addressed in a non-disciplinary framework, rather than as a disciplinary investigation, by having regulatory staff communicate with a noncompliant lawyer on a more informal basis to obtain voluntary compliance. Experience has also shown that, with few exceptions, lawyers will take action to bring their advertising into compliance once the matter is brought to their attention. If the lawyer makes a satisfactory correction or provides a satis- factory explanation, the public will be served. Processing all lawyer advertising complaints through the lawyer disciplinary system takes time and expense and syphons bar resources and attention away from investigation of more serious lawyer misconduct. Situations in which formal discipline should be invoked include conduct that constitutes a violation of Model Rule 8.4(c) and situations involving coer- cion, duress, harassment, or intimidation that create a risk of demonstrable harm. Discipline may also be warranted when lawyers who have been notified of actual noncompliance either fail to respond or continue to violate the rules.30

Conclusion APRL is not advocating that states abdicate their regulatory authority over lawyer advertising. Instead, APRL’s solution addresses the inutility of over-regulation and under-enforcement of lawyer advertising rules in an era of broadly diverse and changing technologies. Consolidating the regulation of lawyer advertising into a single disciplinary rule that prohibits false and misleading communications, com- bined with more uniform enforcement policies and procedures by state disciplinary authorities, is the best way to ensure honest communications by lawyers while promoting the widest possible access by the public to legal services.

Endnotes 1. Bates v. State Bar of Arizona, 433 U.S. 350, 381-382 (1977). 2. See, e.g., Christopher Hurld, Untangling the Wicket Web: The Marketing of Legal Services on the Internet and the Model Rules, 17 GEO. J. LEGAL ETHICS 827 (2004); Margaret Hensler Nicholls, A Quag- mire of Internet Ethics Laws and the ABA Guidelines for Legal Website Providers, 18 GEO. J. LEGAL ETHICS 1021 (2005); Nia Marie Monroe, The Need for Uniformity: Fifty Separate Voices Lead to Dis- union in Attorney Internet Advertising, 18 GEO. J. LEGAL ETHICS 1005 (2005); Fred C. Zacharias, What Direction Should Legal Advertising Regulation Take?, 2005 PROF. LAW. Symp. Issue, at 45 (2005); J. Clayton Athey, The Ethics of Attorney Websites: Updating the Model Rules to Better Deal With Emerg- ing Technologies, 13 GEO J. LEGAL ETHICS 499 (2000). 3. ABA COMMISSION ON ETHICS 20/20, FOR COMMENT: ISSUES PAPER CONCERNING LAWYERS’ USE OF INTERNET BASED CLIENT DEVELOPMENT TOOLS (Sept.10, 2010) [hereinafter CLIENT DEVELOPMENT TOOLS ISSUES PAPER], http://www.americanbar.org/content/dam/aba/migrated/2011_build/ethics_2020/ clientconfidentiality_issuespaper.authcheckdam.pdf. 4. Id. at 1-2.

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5. For example, according to a Pew Research Center 2014 Social Media Update, for the 81% of Ameri- can adults who use the Internet, 52% of online adults now use two or more social media sites; 71% are on Facebook, 70% engage in daily use, 23% use Twitter and 26% use Instagram. 6. Ethics 20/20 considered, without recommending any change, whether ABA Model Rule 8.5 (Choice of Law) offers an adequate means for determining which states’ ethics rules apply to Internet- based communications. See CLIENT DEVELOPMENT TOOLS ISSUES PAPER,supra note 3, at 2, fn 1. 7. Central Hudson Gas & Elec. Corp. v. Pub. Service Comm’n of N.Y., 447 U.S. 557 (1980). 8. Cal. State Bar Formal Op. 2012-186. 9. N.Y. State Bar Ass’n Formal Op. 1049 (2015). 10. See, e.g., N.Y. State Bar Ass’n Formal Op. 2013-972 (2013); Fla. Bar Advisory Op. (2013), avail- able at http://it-lex.org/wp-content/uploads/2013/09/Florida-Bar-Opinion-re-LinkedIn- Redacted.pdf. 11. ASSOCIATION OF PROFESSIONAL RESPONSIBILITY LAWYERS 2015 REPORT OF THE REGULATION OF LAWYER ADVERTISING COMMITTEE (2015), https://www.aprl.net/publications/downloads/ APRL_2015_Lawyer-Advertising-Report_06-22-15.pdf. The Committee consists of former and current bar regulators, law school professors, authors of treatises on the law governing lawyers and lawyers who are experienced in the field of professional responsibility and legal ethics. 12. In response to the question how often complaints about lawyer advertising are received, 56% responded, “rarely,” 17% responded, “almost never,” and 8% responded, “frequently.” 13. In response to the question, “Who are the predominant complainants in lawyer advertising charges?” 78% responded that it was other lawyers; 3% responded that it was consumers. 14. The survey responses reported that in some cases, advertising complaints involving a provable advertising rule violation arehandled with warning letters, diversion, dismissal of formal charges, changes in advertising language, and other dispositions. 15. Only 17% of the jurisdictions responding reported that they actively monitor lawyer advertise- ments. 16. MODEL RULES OF PROF’L CONDUCT R. 8.4(c) provides that it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” In response to the question: “How often do formal advertising complaints alleging false or misleading communications result in disciplinary sanctions, including diversion and probation,” 50% responded, “rarely,” 36% responded “almost never,” and 6% responded, “frequently.” 17. See, e.g., Donald R. Lundberg, Some Thoughts About Regulating Lawyer Advertising, 34 ABA Nat’l Conference on Prof’l Responsibility (2008); Fred C. Zacharias, What Lawyers Do When Nobody’s Watching: Legal Advertising as a Case Study of the Impact of Underenforced Professional Rules, 87 IOWA L. REV. 971 (2002). 18. See, e.g., Harrel v. The Florida Bar, 915 F. Supp. 2d 1285, 1311 (M.D. Fla. 2011); Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010); Public Citizen v. Louisiana Attorney Disciplinary Board, 632 F.3d 212 (5th Cir. 2011); Rubenstein v. The Florida Bar, No. 14-CIV-20786, 2014 WL 6979574 (S.D. Fla. Dec. 9, 2014); Searcy et.al. v. The Florida Bar, Complaint No. 4:13CV00664, 2013 WL 6493683 (N.D. Fla. Dec. 11, 2013). 19. ABA Center for Professional Responsibility, FTC Letters Regarding Lawyer Advertising, http://www.americanbar.org/groups/professional_responsibility/resources/professionalism/profes- sionalism_ethics_in_lawyer_advertising/FTC_lawyerAd.html. 20. 135 S. Ct. 1101 (2015).

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21. See PA. Bar Ass’n Comm. Legal & Prof’l Responsibility, Informal Op. 98-85 (1998). 22. Monroe, supra note 2, at 167; Daniel Backer, Choice of Law in On-line Legal Ethics: Changing a Vague Standard for Attorney Advertising on the Internet, 70 FORDHAM L. REV. 2409, 2418 (2002). 23. ABA CPR Policy Implementation Comm., Variations of the ABA Model Rules of Prof’l Conduct, http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ mrpc_7_1.authcheckdam.pdf. 24. J.T. Westermeier, Ethics and The Internet, 17 GEO. J. LEGAL ETHICS 267, 282 (2004). 25. Jan L. Jacobowitz & Gayland O. Hethcoat II, Endless Pursuit: Capturing Technology at the Inter- section of the First Amendment and Attorney Advertising, 17 J. TECH. L.& POL’Y 63 (2012); Rodney A. Smolla, Lawyer Advertising and the Dignity of the Profession, 59 ARK. L. REV. 437 (2006). 26. ABA CANONS OF PROF’L ETHICS, Canon 27 (1908), available athttp://www.americanbar.org/con- tent/dam/aba/migrated/cpr/mrpc/Canons_Ethics.authcheckdam.pdf. 27. Under Central Hudson, the government can regulate commercial speech when: 1) the speech is either misleading or related to illegal activity; 2) there is a substantial government interest in regulating the speech; 3) the regulation or restriction directly advances a government interest; and 4) whether the regulation is no more extensive than necessary to further the government’s interest. 28. For example, in California, any depiction of an event such as an accident scene with or without sound effects, and any message referring or implying potential monetary recovery, including use of monetary symbols, creates a rebuttable presumption that the advertisement is false, misleading or deceptive. California Business and Professions Code §6158.1; several states ban endorsements and testi- monials, portrayals and logos, mottos and tradenames that state or imply the ability to obtain results in a matter. See Am. Bar Ass’n, Differences Between, State Advertising and Solicitation Rules and the ABA Model Rules of Professional Conduct (May 2014), http://www.americanbar.org/content/dam/ aba/administrative/professional_responsibility/ state_advertising_and_solicitation_rules_differences_update.authcheckdam.pdf. 29. The Committee is also considering whether ABA Model Rule 7.2(b) on referral fees and 7.5 on specialization should be retained as separate rules. 30. The Virginia State Bar reports that it has used a non-disciplinary process successfully for five years in handling lawyer advertising complaints.

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Lawyer Bad Behavior Is Case For Courts

By Matt Masich LAW WEEK COLORADO DENVER — Lawyers have latitude to say defamatory things in court about the op- posing party, but there is no such latitude for lawyers to defame opponents on Twitter. at’s what Westwood College argues in a lawsuit that recently survived a motion to dismiss in Denver District Court. Denver-based Westwood, a for-prot school with 17 locations around the country, last year sued Florida law rm James Hoyer Newcomer & Smiljanich, alleging its lawyers used social media to denigrate the school and interfere with its business. At the time Westwood led its lawsuit, the Florida rm was already representing clients in litigation against the school for allegedly misleading its students about the cost and value of its education. e rm set up websites with negative stories about Westwood, which Westwood claims consti- tutes a smear campaign. “ e goal seems to be using this over- the-top rhetoric to encourage the subject of their attention [Westwood] to settle,” said Left, Perkins Coie attorneys Markus Funk and Norton Cutler, right, flank Westwood College General Counsel Bill Ojile in this photo taken in Perkins Bill Ojile, Westwood’s chief legal counsel Coie’s Denver office. The Westwood legal team is suing a Florida firm for defamation. | LAW WEEK PHOTO JAMIE COTTEN and compliance ocer. James Hoyer and its lawyers deny this in according to Westwood, was its Twitter Westwood, updates on the Westwood courthouse and utter defamatory state- court documents and say Westwood’s law- campaign. James Hoyer attorney Jill Estes class-actions, and an invitation to current ments about the defendant,” Funk said. suit was led in retaliation. sent unsolicited Twitter messages to people or former students to contact James Hoyer. “ e lesson is that, although the law ren- who mentioned they were excited about A main theme of the posts, many of which ders statements made in the context of liti- Westwood takes flak having just enrolled at Westwood. were written the rm’s attorneys, is that gation non-actionable, counsel who exceed For-prot colleges have been the subject Estes sent “tweets” such as: “Molly, West- Westwood scammed students into enroll- the boundaries of what constitutes ‘litiga- of government scrutiny during the last few wood College is not regionally accredited, ing so the school could benet from the tion’ do so at their own peril.” years. Westwood’s parent company, Alta and why does it cost $70,000? Many com- federal aid money they brought in. ere are precedents that guide what Colleges Inc., agreed two years ago to pay plaints at http://bit.ly/westwood”; “problems “When you use words like ‘scam’ lawyers are allowed to say on the court- the U.S. government $7 million to settle a with Westwood College? You are not alone and ‘rip-off,’ those are statements that house steps, but comparatively few rulings lawsuit accusing its schools in Texas of sub- http://bit.ly/westwood”; “You are not alone, are very charged and designed to elicit to guide what they can say on the virtual mitting false claims for federal student aid. ere’s some more info about Westwood an extreme negative reaction,” Ojile courthouse steps: Twitter, Facebook and James Hoyer attorneys have led ve College here http://bit.ly/westwood.” said. Specifically, Westwood alleges the other websites, Ojile said. putative class-action lawsuits or demands All links directed back to Westwood- statements were intended to dissuade “A lot of the case law and certainly the for class arbitration against Westwood on ethical pronouncements have not necessar- behalf of former students, though no classes ily caught up with technology,” he said. have been certied. Courts might be gradually catching James Hoyer’s case in Colorado be- You have a lawyer going on Facebook and Twitter and up. Denver District Court Judge Sheila gan in May 2009 with a demand for class commenting on a bulletin board, egging people on negatively Rappaport denied the James Hoyer de- arbitration. e plaintis claimed West- without saying, ‘I’m a lawyer and I have a class-action coming,’ ” fendants’ motion to dismiss Westwood’s wood engaged in high-pressure recruiting, lawsuit. While the defendants argued misrepresented how much it would cost — Norton Cutler that all Westwood’s claims are barred by students and overhyped the value of the “an absolute litigation privilege,” Rappa- school’s degrees. Scammed.Me. Similar messages were prospective students from enrolling, en- port disagreed. When the arbitrator denied a class in posted on Facebook and other social media, courage current students to leave, and e defamation case can now move July, the rm led a putative class-action Westwood alleges. drive down the school’s revenue. forward. Meanwhile, Westwood and James lawsuit in Denver federal court along similar “You have a lawyer going on Facebook Lawyers can write whatever they want Hoyer continue to ght it out in the prospec- grounds. Judge William Martinez presided and Twitter and commenting on a bulletin in court lings, but the things they write on tive class-action cases — and in the press. last week over a hearing in which Westwood board, egging people on negatively without the Internet are subject to the same defama- Ojile is not only Westwood’s chief legal moved to dismiss the lawsuit and compel saying, ‘I’m a lawyer and I have a class- tion laws as ordinary citizens, Westwood’s counsel, he’s also become something of a PR individual arbitration. action coming,’” said Norton Cutler, the lawyers contend. guru. He takes part in a weekly “PR crisis Perkins Coie attorney in Denver who leads Lawyers are allowed to make defama- call” with internal and external people, plus Trying case on Twitter Westwood’s outside legal team in its lawsuit tory remarks in the courtroom because of a similar monthly call that involves a broad- James Hoyer didn’t limit its advocacy to against the Florida rm. the “litigation privilege.” But the privilege er team including lobbyists and lawyers. court lings, which prompted Westwood’s e rm also operates “ConsumerWarn- doesn’t extend to remarks lawyers make As Westwood states in its lawsuit, James lawsuit against the rm. Westwood alleges ingNetwork.com,” a website with lawyer- on the courthouse steps, or anywhere else Hoyer took out Google ads to display when defamation, interference with contract, penned negative articles about Westwood. outside the court proceeding, said Markus someone searches for Westwood College. To interference with prospective business rela- is site presents itself as an independent Funk, a Perkins Coie partner who has con- counteract that, Ojile has overseen extensive tions, disparagement, violation of the Colo- consumer advocacy group. sulted on the case. search-engine optimization to make sure of- rado Consumer Protection Act, and civil e rm also has a website called “Simply because you are an attorney cial Westwood sites are the rst that show conspiracy. “WestwoodScammed.Me,” which has who led a lawsuit does not convey to up on a search engine’s results. • e rm’s most egregious action, dozens of posts suggesting problems with you carte blanche permission to exit the — Matt Masich, [email protected]